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1988 The tS ate of Utah v. Joseph Mitchell Parsons : Brief of Respondent Utah Supreme Court

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Original Brief Submitted to the Utah Supreme Court; digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, Brigham Young University, Provo, Utah; machine-generated OCR, may contain errors. David L. Wilkinson; Attorney General; Dan R. Larsen; Assistant Attorney General; Attorneys for Respondent. James L. Shumate; Attorney for Appellant.

Recommended Citation Brief of Respondent, Utah v. Parsons, No. 880102.00 (Utah Supreme Court, 1988). https://digitalcommons.law.byu.edu/byu_sc1/1997

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UTAH IN THE SUPREME COURT OF THE STATE OF UTAH DOCUMC-N KFT? 45.STATE OF UTAH, : DOCKET WO Plair^tif-f^Responcient, : Case No. 880102 v. : JOSEPH MITCHELL PARSONS, : Category No. 1 Defendant-Apellant. :

BRIEF OF RESPONDENT

APPEAL FROM A CONVICTION OF MURDER IN THE FIRST DEGREE, A CAPITAL FELONY, IN VIOLATION OF UTAH CODE ANN. § 76-5-202 (Supp. 1987), IN THE FIFTH JUDICIAL DISTRICT COURT, IN AND FOR IRON COUNTY, STATE OF UTAH, THE HONORABLE J. PHILIP EVES, JUDGE, PRESIDING.

DAVID L. WILKINSON Attorney General DAN R. LARSEN Assistant Attorney General 236 State Capitol Salt Lake City, Utah 84114 Attorneys for Respondent

JAMES L. SHUMATE P.O. Box 623 Cedar City, Utah 84720 Attorney for Appellant IN THE SUPREME COURT OF THE STATE OF UTAH

STATE OF UTAH,

JOSEPH MITCHELL PARSONS, j Category N~. 1 Dt.'f endanl -Apellaul

BKIEF OF RESPONDENT

APPEAL FROM A CONVICTION OF MURDER IN THE FIRST DEGREE, A CAPITAL FELONY, IN VIOLATION OF UTAH CODE ANN. S 76-5-202 (Supp. 1987), IN THE FIFTH JUDICIAL DISTRICT COURT, IN AND FOR IRON COUNTY, STATE OF UTAH, THE HONORABLE J. PHILIP EVES, JUDGE, PRESIDING.

DAVID L. WILKINSON Attorney General DAN R. LARSEN Assistant Attorney General 236 State Capitol Salt Lake City Utah 84114 Attorneys r-spondent

JAMES L. SHUMATE P.O. Box 623 Cedar City, Utah 84720 Attorney for Appellant TABLE OF CONTENTS Page TABLE OF AUTHORITIES ii JURISDICTION AND NATURE OF PROCEEDINGS I STATEMENT OF ISSUE PRESENTED ON APPEAL I CONSTITUTIONAL PROVISIONS, STATUTES, AND RULES 2 STATEMENT OF THE CASE 3 STATEMENT OF FACTS 4 SUMMARY OF ARGUMENT 13 ARGUMENT POINT I BECAUSE DEFENDANT PLED GUILTY AS CHARGED, DEFENDANT IS PRECLUDED FROM ATTACKING THE CONSTITUTIONALITY OF THE CAPITAL HOMICIDE STATUTE 18 POINT II THE TRIAL COURT DID NOT ERR IN SUB­ MITTING SPECIAL VERDICTS TO THE JURY REGARDING THE EXISTENCE OF AGGRAVATING FACTORS 23 POINT III THE TRIAL COURT PROPERLY DENIED DEFENDANT'S MOTION FOR A PROPORTIONALITY HEARING REGARDING THE IMPOSITION OF THE DEATH SENTENCE 28 POINT IV THE TRIAL COURT DID NOT ERR AND THE DEFENDANT WAS NOT PREJUDICED WHEN THE TRIAL COURT ADVISED THE PROSECUTOR THAT A MISTRIAL MY RESULT IN DOUBLE JEOPARDY 30 POINT V THE TRIAL COURT DID NOT ERR IN ADMITTING EVIDENCE OF AN UNCHARGED NON-VIOLENT CRIME 32 POINT VI NO RECORD EVIDENCE EXISTS TO SUPPORT DEFENDANT'S CLAIM THAT THE JURY WAS IMPROPERLY INFLUENCED BY THE APPEARANCE OF FORMER JUDGE J. HARLAN BURNS 35 POINT VII THE PROSECUTOR DID NOT IMPROPERLY EXPRESS AN OPINION ON THE EVIDENCE DURING CLOSING ARGUMENT 36

-i POINT VIII DEFENDANT AFFIRMATIVELY WAIVED ANY PREJUDICE RESULTING FROM THE JUROR/ WITNESS CONTACT OR, IN THE ALTERNATIVE, THE STATE OVERCAME THE PRESUMPTION OF PREJUDICE POINT XX THE TRIAL COURT PROPERLY DENIED DEFEN­ DANT'S REQUEST FOR A REASONABLE ALTER­ NATIVE HYPOTHESIS INSTRUCTION CONCLUSION TABLE OF AUTHORITIES CASES CITED Page

Arthur v. State, 472 So.2d 650 (Ala. Cr. App. 1984), reversed on other grounds, 472 So.2d 665 (Ala. 1985) 22 Brady v. United States, 397 U.S. 742 (1970) 18, 20 Bullinqton v. Missouri, 451 U.S. 430 (1981) 30 Codianna v. Morris, 660 P.2d 1101 (Utah 1983) 22 DeBolt v. Cupp, 19 Or. App. 545, 528 P.2d 601 (1974). 20 Graham v. West Virginia, 224 U.S. 616 (1912) 21 Gregg v. Georgia, 428 U.S. 153 (1976) 33 Johnson v. State, 691 S.W.2d 619 (Tex. Cr. App. 1984) 26 Lefkowitz v. Newsome, 420 U.S. 283 (1975) 19 McMann v. Richardson, 397 U.S. 759 (1970) 18 Parker v. North Carolina, 397 U.S. 790 (1970) 18 Pennsylvania v. Ashe, 302 U.S. 51 (1937) 21 People v. Reid, 420 Mich. 326, 362 N.W.2d 655 (1984). 19 Pulley v. Harris, 465 U.S. 37 (1984) 29-30 Spencer v. Texas, 385 U.S. 554 (1967) 21 State v. Amlcone, 689 P.2d 1341 (Utah 1984) 30, 32, 36-37 State v. Ashby, 245 So.2d 225 (Fla. 1971) 19 State v. Bell, 92 Utah Adv. Rep. 22 (filed S. Ct. 9/30/88 35 State v. Bishop, 753 P.2d 439 (Utah 1988) 26 State v. Brooks, 638 P.2d 537 (Utah 1981) 27 State v. Crosby, 338 So.2d 584 (La. 1976) 19 State v. Eagle, 611 P.2d 1211 (Utah 1980) 43 State v. Eckert. 123 Wash. 403, 212 P. 551 (1923) 20 State v. Erickson, 749 P.2d 620 (Utah 1987) 42 State v. Forsyth, 641 P.2d 1172 (Utah 1982) 33 State v. Hodges, 30 Utah 2d 367, 517 P.2d 1322 (1974) 38 State v. Jones, 645 P.2d 656 (Utah 1982) 31 State v. Kabachenko, 2 Or. App. 202, 465 P.2d 891 (1970) 20 State v. Lafferty, 749 P.2d 1239 (Utah 1988) 20, 25-26, 32-34, 37 State v. Larocco, 665 P.2d 1272 (Utah 1983) 43 State v. Mclntire, slip op no. 870449-CA (filed Utah Ct. App. 10/17/88) 18 State v. Pike, 712 P.2d 277 (Utah 1985) 42 State v. Ronniqer, 7 Or. App. 447, 492 P.2d 298 (1971) 20 State v. Sery, 758 P.2d 935 (Utah Ct. App. 1988) 19 State v. Steqqell, 660 P.2d 252 (Utah 1983) 28, 32, 36 State v. Tillman, 750 P.2d 546 (Utah 1987) 20, 26, 29, 32, 39 State v. Tucker, 709 P.2d 313 (Utah 1985) 35 State v. Valdez, 30 Utah 2d 54, 513 P.2d 422 (1973).. 37 State v. White, 577 P.2d 552 (Utah 1978) 38 State v. Yeck, 566 P.2d 1248 (Utah 1977) 18 Taylor v. Johnson, 18 Utah 2d 16, 414 P.2d 575 (1966) 27 Tollett v. Henderson, 411 U.S. 258 (1973) 18, 20 United States v. Bulshas, 791 F.2d 1310 (7th Cir. 1986) 26 Unite1980d) States v. DePoli, 628 F.2d 779 (2nd Cir. 19 United States v. Doyle, 348 F.2d 715, cert, denied, 382 U.S. 843 (1965) (2nd Cir. 1965) 18 United States v. Lopez, 704 F.2d 1382 (5th Cir. 1983), cert, denied, 464 U.S. 935 (1983) 19 United States v. Orozco-Prada, 732 F.2d 1076 (2nd

Cir. 1984) 26

STATUTES AND RULES

Utah Code Ann. 5 76-3-207(2) (1987) 33

Utah Code Ann. S 76-5-202 (Supp. 1987) 2-3, 21-22 Utah Code Ann. S 76-6-302 (1978) 3-4 Utah Code Ann. S 76-6-404 (1978) 4 Utah Code Ann. S 76-10-503(2)(a) (Supp. 1987) 34 Utah Code Ann. S 77-35-19(c) (1982) 20 Utah Code Ann. S 77-35-30(a) (1982) 35-36 Utah Code Ann. S 78-2-2(3) (h) (1987) 1 Utah R. Crim. P. 19(c) 23 Utah R. Crim. P. 30(a) 36 Utah R. Evid. 103(a) 35 Utah R. of Evid. 403 3, 17, 22 Utah R. of Evid. 404(b) 3, 17, 22, 33 OTHER AUTHORITIES

4 LaFave, Search and Seizure, S 11.1(d) (2d ed. 1987). 18 IN THE SUPREME COURT OF THE STATE OF UTAH

STATE OF UTAH, Plaintiff-Respondent, Case No. 880102 v. JOSEPH MITCHELL PARSONS, Category No. 1 Defendant-Appellant.

BRIEF OF RESPONDENT

JURISDICTION AND NATURE OF PROCEEDINGS This appeal is from a conviction of Murder in the First Degree, a capital felony, after a jury verdict imposing a sentence of death in the Fifth Judicial District Court. This Court has jurisdiction to hear the appeal under Utah Code Ann. S 78-2-2(3)(h) (1987). STATEMENT OF ISSUES PRESENTED ON APPEAL 1. Whether defendant is precluded from attacking the constitutionality of the capital homicide statute in light of his unconditional plea of guilty as charged. 2. Whether it is proper to submit special verdicts to a jury to determine which aggravating circumstances the jury relied upon in determining the propriety of the death sentence. 3. Whether a defendant sentenced to death is constitutionally entitled to a case-by-case proportionality review. 4. Whether it was harmless for the trial court to comment to the prosecutor that a State's Motion for Mistrial may impose the Double Jeopardy Clause. 5. Whether the trial court properly allowed the jury to find beyond a reasonable doubt the existence of an aggravating circumstance consisting of an uncharged non-violent crime for which defendant had not been convicted. 6. Whether the absence of record evidence of prejudice •hould preclude this Court's review of defendant's claim that the jury was improperly influenced by the brief appearance of former Judge J. Harlan Burns. 7. Whether the trial court properly found that the prosecutor's closing argument was not an expression of opinion on the evidence. 8. Whether defendant affirmatively waived any prejudice resulting from the juror/witness contact or, in the alternative, whether the State overcame the presumption of prejudice. 9. Whether the trial court properly denied defendant's request for a "reasonable alternative hypothesis" jury instruction. CONSTITUTIONAL PROVISIONS, STATUTES AND RULES Utah Code Ann. S 76-5-202 (Supp. 1987): 76-5-202 Murder in the first degree. (1) Criminal homicide constitutes murder in the first degree if the actor intentionally or knowingly causes the death of another under any of the following circumstances:

• . • • (d) The homicide was committed while the actor was engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit, aggravated robbery, (f) The homicide was committed for pecuniary or other personal gain.

(h) The actor was previously convicted of first or second degree murder or of a felony involving the use or threat of violence to a person. For the purpose ofthis paragraph an offense committed in another jurisdiction, which if comitted in Utah would be punishable as first or second degree murder, is deemed first or second degree murder. Utah R. of Evid. 403: Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Utah R. of Evid. 404(b): (b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. STATEMENT OF THE CASE Defendant, Joseph Mitchell Parsons, was charged with Murder in the First Degree, a capital felony, in violation of Utah Code Ann. S 76-5-202 (Supp. 1987); Aggravated Robbery, a first degree felony, in violation of Utah Code Ann. S 76-6-302 (1978); and Theft of an Operable Motor Vehicle, a second degree felony, in violation of Utah Code Ann. 5 76-6-404 (1978) (R. 1- 2). Defendant pled guilty as charged on September 18, 1987 in the Fifth Judicial District Court, in and for Iron County, State of Utah, the Honorable J. Philip Eves, Judge, presiding (R. 79- 86). At the penalty phase, defendant was sentenced to death after a jury trial held January 26, 1988 through January 29, 1988 in the Fifth Judicial District Court, in and for Iron County, State of Utah, the Honorable J. Philip Eves, Judge, presiding (R. 299, 354-59). A stay of execution was issued by this Court on March 18, 1988. STATEMENT OF FACTS On August 30, 1987, Richard L. Ernest left his home in Loma Linda, California to seek a job opportunity and new environment for his family in Denver, Colorado (T. 660-63). Defendant was driving a 1986 blue Dodge Omni which was packed with his personal belongings and carpenter tools (T. 683-89; State's Exhibit P-55). He had $200 in cash (T. 667-76, 681; State's Exhibit P-90). At about 4:00 to 5t00 p.m. that afternoon, Mr. Ernest stopped near Barstow, California and picked up defendant who was hitchhiking to Florida (R. 1038, 1078, 1090, 1084). Mr. Ernest agreed to take defendant as far as Denver, Colorado (T. 1082-83). As they drove, Mr. Ernest explained to defendant that his wife was having an affair in California and that he was moving to

"RH refers to the trial court record; "T" refers to the transcipts of the trial. Denver (T. 1038-39, 1083-86). He alBo mentioned that he had a nine-year-old son (T. 1084). They stopped in St. George and ate dinner together at Denny's (T. 1089). At about 3:00 a.m., Mr. Ernest pulled into the Lunt Park Rest Area on Interstate 15 near Cedar City (T. 548, 1040, 1094). After using the restroom, Mr. Ernest said that he was too tired to continue driving and he was going to rest (T. 1040-41, 1096). Mr. Ernest covered himself with a sleeping bag as he sat in the driver's seat (T. 1040, 1095). Defendant leaned his head against the passenger door and window in an attempt to sleep (T. 1041, 1096). According to defendant, Mr. Ernest reached over and put his hand on defendant's thigh (T. 1041, 1099). Defendant pushed the hand off and told Mr. Ernest that was not his style and to leave him alone (T. 1041, 1100). When Mr. Ernest put his hand on defendant's thigh a second time, defendant again pushed the hand off and reached for the door handle (T. 1042, 1102). Mr. Ernest then grabbed defendant's left wrist and said "You're not going anywhere" (T. 1042, 1102-03). With his right hand, defendant grabbed a knife from his right sock and thrust it into Mr. Ernest's chest (T. 1042-43, 1103-04). The five-inch-double-edged knife penetrated six-inches into Mr. Ernest's chest puncturing the right ventricle of the heart (T. 866-68, 1103-04; State's Exhibit P-100). Mr. Ernest began screaming and knocked defendant's glasses off as he struggled with defendant (T. 1043, 1106). Defendant continued to stab Mr. Ernest causing deep puncture wounds above the right eye, below the left cheek, below the left jaw, and in the lower neck (T. 862-70, 1106-08; State's Exhibit P-109). Multiple superficial wounds were inflicted in the forehead, right-side of the neck, left shoulder, left arm, and left abdomen (T. 870-71; State's Exhibit P-109). The next event defendant recalls is driving Mr. Ernest's car on Interstate 15 (T. 1044, 1110). When oncoming vehicles began flashing their lights, defendant turned on the headlights (T. 1044). As the dashboard lights illuminated Mr. Ernest's bloody face, defendant swerved to the road side and pushed Mr. Ernest's body out the passenger door (T. 1044-45, 1110, 1113-14). Defendant covered Mr. Ernest's body and face with a sleeping bag because H[i]t was kind of cold and chilly that night, and [he] thought [Mr. Ernest] might get cold." (T. 1045-46, 1116-17). Defendant drove to Beaver, Utah where he stopped at Dave's Texaco, an all-night gas station and convenience store, at about 4:30 a.m. (T. 704, 708, 712). Defendant went directly to the bathroom where he washed off the blood and changed clothing (T. 1047-48, 1120). He then asked the eighteen-year-old gas station attendant, Chad M. Williams, where a garbage dumpster was located (T. 1048). Defendant began unloading Mr. Ernest's tools and personal belongings out of the car and throwing them in the dumpster (T. 1048, 1122). When Mr. Williams heard the heavy objects hitting the bottom of the dumpster, he approached defendant and asked him why he was throwing the items away (T. 716-18, 1123). Defendant explained that the items were his ex- wife's boyfriend's, that they were slowing him down, and he didn't want them in the car (T. 718, 1123). Mr. Williams asked defendant if he could have the tools (T. 718). Defendant agreed if Mr. Williams would let him use a hose and towel to clean up the red paint his ex-wife spilled in the car (T. 718-19). Mr. Williams gladly consented. £d. After cleaning the car and filling it with gas, defendant purchased $21.00 in food items and paid for the gas and food with a credit card in the name of Richard L. Ernest (T. 1126-27; State's Exhibit P-77, P-78). He explained to Mr. Williams that the dark sunglasses he was wearing at 4:30 in the morning were prescription (T. 714). Defendant ate two chimichangas and asked Mr. Williams where a motel was located (T. 724, 729). Defendant remained at the gas station for about 45 minutes as he cleaned, ate, talked, and laughed (T. 729, 732, 1121). Defendant drove to Richfield where he stopped at the Quality Inn, approached the clerk, put a credit card on the counter, and said "I'd like the best room you have" (T. 740). He explained that he was tired, had been traveling all night, was on his way to Denver for a job, and that his company would pay for the room (T. 740-41). The motel clerk, Eloise B. Smith, responded that the room had a Jacuzzi and room service (T. 741, 1130). Defendant filled out the motel registry in the name of Richard L. Ernest and used Mr. Ernest's credit card to pay for the motel room and room service (T. 741, 1129; State's Exhibit P- 80).

7- After taking a shower and eating a meal, defendant went to Western Union in an attempt to obtain money wired to him from a friend's sister (T. 1051-52, 1137). At about 8:00 a.m., defendant dropped off his laundry at a local laundromat to be cleaned and picked up later that morning (T. 780-81). Defendant asked the laundromat employee, Michael J. Slater, if there was an optometrist in town who could make some glasses for him (T. 781). Mr. Slater referred him to an optometrist. Id. Defendant then went to a K-Mart store and purchased two seat covers to hide the blood stains on the car seats (T. 749, 1138-39). Again, defendant paid for the merchandise with Mr. Ernest's credit card (T. 748-51). Defendant arrived at the optometrist's at about 10:30 a.m. and requested a pair of prescription lenses with frames (T. 775-76). The optometrist, Robert Dale Singleton, informed defendant that he did not have the proper lenses in stock (T. 774-76). Mr. Singleton referred defendant to Precision Lens Crafters in Colorado where defendant had explained he was travelling (T. 776). Defendant returned to K-Mart and attempted to purchase several items including a set of suitcases, a clothes hanging bag, shorts, socks, a gold watch, a gold chain, and a gold cross (T. 758, 1140; State's Exhibits P-82, P-83). When a K-Mart employee, Sally Jolley, sought an authorization number for the credit card purchase, the computer requested that she -pick up" the credit card and decline the purchase (T. 760). She explained the situation to defendant who quietly relinquished the merchandise without complaint (T. 761-63). When Miss Jolley requested identification from defendant, defendant offered a California driver's license in the name of Richard Lynn Ernest (T. 763; State's Exhibit P-92(e)). Miss Jolley quickly wrote down the identification information on a return slip (T. 763-64; State's Exhibit P-84). During this procedure, Miss Jolley was surprised that defendant was so pleasant, calm, and cooperative (T. 762-66). Miss Jolley asked defendant if he would return the car seat covers (T. 765-66). Defendant responded that he would go to the motel and return them. £d. Another employee noticed that defendant had a Quality Inn Motel key in his hand (T. 766). When defendant did not return, K-Mart notified Quality Inn of the bad credit card (T. 597, 764). Defendant went to the motel, gathered his belongings, and returned to the laundromat to pick up his laundry (T. 1141). Defendant paid cash for his laundry bill, tipped the employee, and returned to Western Union to check if any money had arrived (T. 782, 1141). Finding that no money had arrived, defendant left town (T. 1141-42). At about 4:15 p.m., Trooper Larry Fish of the Utah Highway Patrol spotted a vehicle at the Red Creek Rest Area on Interstate 70 which fit the description of an attempt to locate on a homicide suspect (T. 789). As the Trooper approached the vehicle, he observed defendant sleeping with the seat reclined and the driver's side window open (T. 790-91). Trooper Fish drew his weapon, placed it against defendant's chest, and said, "Do you want to die?M (T. 791, 804). Defendant awoke and said, "no" (T. 804-05). Defendant was placed under arrest and refused to identify himself (T. 791). In conducting an inventory of defendant's vehicle, blood stains were observed on the seats and a knife and a loaded .38 caliber revolver were found in the glove box (T. 655, 793). Defendant was transported to the Sevier County Jail by Officer John Evans of the Richfield Police Department (T. 595, 601). In route, defendant identified himself as Richard L. Ernest (T. 600). When the Officer notified defendant that he had been arrested for credit card fraud, defendant began to laugh (T. 601). Trooper Fish later discovered a wallet beneath the passenger's seat of his patrol car where defendant had been seated (T. 602, 797). The wallet contained a driver's license, credit cards, and other items in the name of Richard L. Ernest (T. 797-801). A birth certificate from the City of New York in the name of Joseph Mitchell Parsons was also found in the wallet (T. 801). Earlier that day at about 11:00 a.m., Detective Roy Houchen of the Cedar City Police Department discovered a body covered by a sleeping bag approximately 30 feet from the road about a mile from the Lunt Park Rest Area on Interstate 15 (T. 547-48, 558; State's Exhibits P-4, P-7). Detective Houchen had been searching for a body along the interchanges of 1-15 at the request of the Beaver County Sheriff's Office, which office had been informed of the blood soaked clothes in the dumpster at Dave's Texaco (T. 548, 569-72, 583). On September 18, 1987, defendant pled guilty to Capital Homicide, Aggravated Robbery, and Vehicle Theft (T. 79-86). At the penalty phase, defendant testified that he was born in New York City on July 22, 1964 (T. 1000). After his father was released from prison in New York, his family moved to New Jersey (T. 1001). Defendant recalled that his father beat him and blames his father for his criminal behavior (T. 1002, 1061). Defendant's parents obtained a divorce and defendant moved to Florida with his mother and siblings when defendant was fourteen years old (T. 949, 1003). Defendant graduated from Plantation High School in North Lauderdale, Florida in June of 1982 (T. 1011). After graduation, defendant worked as a shoe salesman in a local mall (T. 952, 1010-11). At the age of 18, defendant walked into a motorcycle shop and told the salesman that his mother was on her way to buy him a motorcycle (T. 954-55, 1011). He asked the salesman if he could take the motorcycle for a test drive. Id. The salesman agreed and defendant drove the motorcycle to his brother's workplace to show him the bike (T. 1012). After showing the bike to his brother, defendant left town without paying for the bike or saying good-bye to his family (T. 953, 1012). Defendant travelled to Las Vegas, Nevada where he quickly spent his remaining money (T. 1013). He met a man named David P. Wood who was also broke and desperate for money (T. 1014-15). Together, they robbed a taxi cab driver at gun point (T. 1015-16). Moments after committing the robbery, they returned to the cab to recover Mr. Wood's coat which had been

-11- left behind (T. 1016). When they returned, they were both arrested by two armed citizens (T. 1016). Defendant pled guilty to Robbery with the use of a gun and was sentenced to seven-and-one-half years in prison (T. 900- 04, 1017). Five years later, defendant was paroled on June 26, 1987 at the age of twenty-three (T. 917). Defendant lived at a halfway house for parolees in Reno, Nevada and worked at a pallet company owned by an ex-convict (T. 920, 1029-30). In about mid- August, 1987, defendant obtained a .38 caliber revolver in violation of his parole, stole a motorcycle from the manager of the halfway house, and headed for San Francisco, California (T. 923-24, 1033, 1036). When defendant's motorcycle stopped just outside San Francisco, defendant abandoned the motorcycle and began hitchhiking South toward the warmer beaches (T. 1034, 1072-73). As he traveled, defendant carried the gun in his travel bag and a knife in his right sock -for protection" (T. 1036-37, 1074). Defendant hitchhiked to Huntington Beach, California where he tanned, swam in the ocean, and slept on the beach for three to four days (T. 1034-35, 1076). Deciding that he wanted to go to Florida, defendant once again began hitchhiking (T. 1035). Near Barstow, California, Mr. Ernest stopped to give defendant a ride (t. 1038, 1080).

At trial, defendant offered the testimony of his family members in mitigation of his sentence (T. 938-42, 943-56, 958-72; R. 416 at pp. 4-12). Each of his family members testified that if defendant received a life sentence, they would visit, telephone, and write defendant in prison. .Id. Prior to defendant's arrest, none of defendant's family members had seen him since he left Florida at the age of eighteen, jtd. Dr. Robert J. Howell, a forensic psychologist, testified that he had interviewed and tested defendant and found no mental disorder (T. 1146-47, 1149, 1154). However, Dr. Howell pointed out that there was evidence of antisocial personality disorder (T. 1155-56). He further opined that defendant had the ability to work towards rehabilitation (T. 1158). In rebuttal to defendant's theory of the crime, the State offered the testimony of the victim's friends and family members that Mr. Ernest was not a homosexual and that he had never exhibited homosexual tendencies (T. 1176-77, 1181, 1184, 1188). SUMMARY OF ARGUMENT Defendant is precluded from attacking the constitutionality of the Utah Capital Homicide Statute in light of his unconditional and voluntary plea of guilty as charged. All nonjurisdictional, pre-plea defects are affirmatively waived by a voluntary and intelligent guilty plea. Defendant failed to preserve the issue by entering a plea conditioned on his right to appeal the statute's constitutionality. In any event, defendant's guilty plea was constitutionally sound in light of defendant's plea and admittance to two other aggravating circumstances and accompanying offenses i.e., Aggravated Robbery, and Vehicle Theft. Further, at the penalty phase, the jury found beyond a reasonable doubt by special verdict that defendant committed the Homicide while engaged in committing an Aggravated Robbery and that he did BO for pecuniary gain. On the merits, there is no double jeopardy violation in a Capital Homicide statute which includes as an element of the crime a prior felony conviction involving the use or threat of violence to a person. The purpose and effect of using the prior conviction is increased punishment, not dual punishment. Because defendant pled guilty without a trial, defendant cannot speculate prejudice from the improper admission of prior conviction evidence during a non­ existent guilt phase. The trial court properly allowed the jury to return special verdicts regarding the existence of individual aggravating circumstances beyond a reasonable doubt. As stated in Lafferty, special verdicts may be helpful to an appellate court in determining which aggravating circumstances were relied upon by the jury in imposing the death sentence. In the present case, the special verdicts did not confuse or mislead the jury in a manner prejudicial to defendant. In fact, the special verdicts assured defendant of the jury's unanimity beyond a reasonable doubt concerning each aggravating circumstance. The jury instructions taken as a whole were clear and not misleading regarding the burden of proof and the relative weight to be accorded the aggravating and mitigating circumstances.

This Court has ruled that a case-by-case proportionality (comparative) review is not required under the federal or Utah Constitutions. The death penalty in the present case was not arbitrarily imposed where the jury found the existence of three aggravating circumstances beyond a reasonable doubt. Because defendant fails to assert any statutory or constitutional authority in support of his claim of judicial impropriety, this Court should not consider defendant's claim. In any event, the Double Jeopardy Clause does not preclude a new capital sentencing phase where a mistrial resulted in the absence of bad faith by the judge or prosecutor. Lastly, defendant's claim of prejudice presumes the trial judge would have granted the State's Motion for Mistrial. Prejudicial error must be based upon a reasonable likelihood, not mere speculation. This Court in Lafferty ruled that evidence of other crimes is admissible in a capital penalty phase if the elements of the offense are found beyond a reasonable doubt prior to the jury's reliance on them as an aggravating circumstance. In the present case, the jury was properly instructed in accordance with the requirements of Lafferty. In any event, the other crime evidence was admitted by defendant thereby obviating any harm. Because no prejudice is claimed by defendant or supported by the record regarding Judge Burns brief appearance, this Court should not assume that the event affected the substantial rights of defendant. An improper expression of opinion on the evidence did not occur when the prosecutor commented in closing argument that he was confident that the jury would not believe defendant's theory of the crime. In any event, the jury was properly instructed that they could not consider the attorneys' statements as evidence. Because defendant invited the alleged error by affirmatively waiving any prejudice in the trial court below, he cannot now raise the juror/witness contact issue on appeal. A defendant should not be permitted to intentionally seed prejudicial error in the record as appellate insurance in the event of an adverse sentencing result. In any event, the trial court properly found that the presumption of prejudice was rebutted by the inconsequential nature of the contact. The trial court properly denied defendant's request for a "reasonable alternative hypothesesM instruction where the jury was properly informed of the legal standard to be applied. ARGUMENT POINT I BECAUSE DEFENDANT PLED GUILTY AS CHARGED, DEFENDANT IS PRECLUDED ON APPEAL FROM ATTACKING THE CONSTITUTIONALITY OF THE CAPITAL HOMICIDE STATUTE. Defendant was charged in an Amended Information with Capital Homicide, Aggravated Robbery, and Vehicle Theft (T. 103). As aggravating circumstances to Capital Homicide, the Amended Information alleged that defendant committed the homicide: (1) in the commission of an Aggravated Robbery; (2) for pecuniary gain; (3) and when he had been previously convicted of a felony involving the use or threat of violence to a person. Id. Defendant pled guilty as charged without any specific limitations on the elements of Capital Homicide and without any conditional provisions to allow him to preserve certain issues for appeal (T. 79-86). Based upon defendant's plea of guilty, defendant was convicted of Capital Homicide, Aggravated Robbery and Vehicle Theft (T. 347-52). On appeal, defendant claims that the Capital Homicide 2 statute to which he pled guilty is unconstitutional. (Brief of App. at pp. 8-12.) First, defendant claims that the statute violates double jeopardy by utilizing a previous conviction as a circumstance to elevate murder to a capital offense. Second, he argues that the statute unconstitutionally allows the State to admit unduly prejudicial evidence of other crimes in contravention of Rules 403 and 404(b) of the Utah Rules of Evidence. Defendant's claims are barred.

2 Utah Code Ann. S 76-5-202 (Supp. 1987) provides in pertinent part: (1) Criminal homicide constitutes murder in the first degree if the actor intentionally or knowingly causes the death of another under any of the following circumstances:

(d) The homicide was committed while the actor was engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit, aggravated robbery,

(f) The homicide was committed for pecuniary or other personal gain,

(h) The actor was previously convicted of first or second degree murder or of a felony involving the use or threat of violence to a person. For the purpose ofthis paragraph an offense committed in another jurisdiction, which if comitted in Utah would be punishable as first or second degree murder, is deemed first or second degree murder.

-17- The United States Supreme Court in Tollett v.

Henderson, 411 U.S. 258# 267 (1973), held that a defendant is precluded from alleging denial of constitutional rights which occurred prior to the entry of a voluntary and intelligent guilty plea. See also. State v. Veck, 566 P.2d 1248, 1249 (Utah 1977); State v. Mclntlre, slip op no. 870449-CA (filed Utah Ct. App.

10/17/88); 4 LaFave# Search and Seizure, $ 11.1(d) (2d ed. 1987). In Tollett, a defendant sought Federal Habeas Corpus review of his 1948 guilty plea and murder conviction. Tollett, 411 U.S. at 259. He asserted the denial of his constitutional rights from the systematic exclusion of Blacks from grand jury service. The Court reaffirmed the principle set forth in Brady v. United States, 397 U.S. 742, 750 (1970) that "a guilty plea represents a break in the chain of events which has preceded it in the criminal process.- Tollett, at 267; see also McMann v. Richardson, 397 U.S. 759, 770 (1970); Parker v. North Carolina, 397 U.S. 790 (1970). The High Court explained that (w]hen a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional Rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and the intelligent character of the guilty plea by showing that the advice he received from counsel was not within he standards set forth in McMann. Tollett, at 267. Thus, all non-jurisdictional defects are affirmatively waived by a voluntary and intelligent guilty plea. United States v. Doyle, 348 F.2d 715, 718-19, cert, denied, 382 U.S. 843 (1965) (2nd Cir. 1965) (A plea of guilty is an admission of guilt and a waiver of all nonjurisdictional defects); United

States v. DePoli# 628 F.2d 779 (2nd Cir. 1980); United States v. Lopez, 704 F.2d 1382 (5th Cir. 1983), ce£t. denied, 464 U.S. 935

(1983); State v. Seryf 758 P.2d 935, 938 (Utah Ct. App. 1988). Some courts have permitted a defendant to avoid the waiver doctrine of pre-plea constitutional rights by allowing a defendant to enter a conditional plea expressly preserving specific issues for appeal with the consent of the judge and prosecutor. State v. Sery, 758 P.2d 935, 938 (Utah Ct. App. 1988); People v. Reid, 420 Mich. 326, 362 N.W.2d 655 (1984); State v. Crosby, 338 So.2d 584 (La. 1976); State v. Ashby, 245 So.2d 225 (Fla. 1971); Lefkowitz v. Newsome, 420 U.S. 283, 293 (1975) (per Stewart, J.). (Commending New York State statute exempting alleged fourth amendment violations from the waiver rule.) A conditional plea nullifies the general rule of waiver and allows a defendant to withdraw his plea in the event he is successful on appeal. Sery, 758 P.2d at 938.

In the instant case, defendant pled guilty as charged unconditionally (R. 79-86). On appeal, defendant does not attack the voluntariness of his guilty plea. Rather, he complains that the constitutional principle of double jeopardy is violated by the Utah Capital Homicide Statute. However, defendant failed to attack the constitutionality of the statute prior to his plea or to conditionally preserve the issue for appeal (T. 209-10). Defendant's plea effectively admitted all the elements of the formal charge without reservation. United States v. Lopez, 704 F.2d 1382 (5th Cir. 1983). Because defendant's present case is nonjuriBdictional much like the claims in Tollett, Brady, and Mclntire, defendant is precluded from attacking the capital homicide statute on appeal. State v. Kabachenko, 2 Or. App. 202, 465 P.2d 891, 892 (1970); DeBolt v. Cupp, 19 Or. App. 545, 528 P.2d 601, 603 n.2 (1974); State v. Ronniqer, 7 Or. App. 447, 492 P.2d 298, 304 (1971) (A claim of an unconstitutional drug statute is not reviewable on direct appeal after a plea of guilty to drug charges). In any event, defendant pled guilty as charged including two other aggravating circumstances elevating the crime to a capital offense (T. 1-3, 79-86). While defendant now disputes whether his plea to Capital Homicide included the admission of the pecuniary gain and Aggravated Robbery circumstances, it must be noted that defendant also pled guilty to the separate charges of Aggravated Robbery and Vehicle Theft. Id. Thus, defendant clearly admitted and pled guilty to two separate aggravating circumstances of Capital Homicide. Therefore, defendant's double jeopardy claim regarding his previous felony conviction is harmless in light of the presence of two other aggravating circumstances. See State v. Lafferty, 749 P.2d 1239, 1261 (Utah 1988) (Holding that existence of two other statutory aggravating factors in penalty phase made

In contrast, the Washington Supreme Court in State v. Eckert, 123 Wash. 403, 212 P. 551, 552 (Wash. 1923) noted that under Washington constitutional and statutory law a defendant may attack the validity of the charged offense on appeal from a guilty plea. However, because defendant does not assert that the Utah constitution should extend further protection than the federal constitution, this Court need not consider separate state constitutional analaysis. State v. Lafferty, 749 P.2d 1239, 1247 n.5 (Utah 1988). harmless any error arising from admitting prior criminal acts,)

Further# the jury returned special verdicts finding beyond a reasonable doubt that defendant intentionally or knowingly caused the victim's death while engaged in committing Aggravated Robbery and that he did so for pecuniary gain (R. 297). In the event this Court reaches the merits of defendant's claims of unconstitutionality, defendant's claims must fail. Regarding his double jeopardy claim, defendant attempts to distinguish $ 76-5-202(1)(h) from the habitual criminal statutes which have been upheld against similar attacks and he implies that he should have been convicted of second degree murder because the use of his prior conviction to aggravate the murder is unconstitutional. Defendant's reasoning is flawed. As stated by the Supreme Court, "the prosperity of inflicting severer punishment upon old offenders has long been recognized in this country and in England. They are not punished the second time for the earlier offense, but the repetition of criminal conduct aggravates their guilt and justifies heavier penalties when they are again convicted.- Graham v. West Virginia, 224 U.S. 616, 623 (1912). The Court reaffirmed this principle in Pennsylvania v. Ashe, 302 U.S. 51 (1937) (increased degree of crime of escape depending on degree of crime for which defendant serving time when escaped not double jeopardy violation), and in Spencer v. Texas, 385 U.S. 554 (1967). Based upon this reasoning, the Alabama Supreme Court held that there was no double jeopardy violation in its first degree murder statute including as an element of the crime a prior conviction

for murder. Arthur v. State# 472 So.2d 650 (Ala. Cr. App. 1984), overruled on other grounds, 472 So.2d 665 (Ala. 1985). The effect of including as an element of first degree murder a prior violent felony conviction is increased punishment. Removing this as an element of the crime and creating another statutory scheme whereby this aggravating circumstance would not apply until the penalty phase would serve no real distinguishing purpose in the context of double jeopardy analysis and defendant presents no convincing argument to the contrary. Defendant's second claim is that S 76-5-202(1)(h) unconstitutionally allows the State to offer otherwise inadmissible evidence violative of Rules 403 and 404(b) of the Utah Rules of Evidence. Because defendant pled guilty without a trial, it is difficult to perceive how defendant can claim prejudice from evidence that was never admitted. It is mere speculation that the evidence would have been offered or admitted. The case could have been submitted to the jury on either one or both of the other aggravating circumstances. Therefore, this Court should not consider defendant's claim of error based solely on speculation. Cf. Codianna v. Morris, 660 P.2d 1101, 1109 (Utah 1983) (claim of inadequate representation must be a demonstrable reality and not a speculative matter).

_*o_ POINT II THE TRIAL COURT DID NOT ERR IN SUBMITTING SPECIAL VERDICTS TO THE JURY REGARDING THE EXISTENCE OF AGGRAVATING FACTORS. Defendant asserts that the jury was misled by the special verdicts to conclude that only aggravating circumstances existed (Brief of App. at pp. 12-14). He argues that this Court should expressly prohibit special verdicts in capital sentencing proceedings or# in the alternative, require special verdicts on 4 both aggravating and mitigating circumstances. Defendant's claim of error must fail. In the present case, the trial court submitted three special verdict forms to the jury which read as follows: SPECIAL VERDICT QUESTIONS Prior to entering your verdict on one of the following verdict forms, you are instructed to answer each and all of the following Special Verdict Questions: After duly considering the evidence and applying the law as instructed, do you find beyond a reasonable doubt that the defendant, Joseph Mitchell Parsons, intentionally or knowingly caused the death of Richard L. Ernest while the said Joseph Mitchell Parsons was engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit Aggravated Robbery. YES, we so find unanimously.

4 It should be noted that defendant failed to object to the special verdicts as required by Utah R. Crim. P. 19(c), codified as Utah Code Ann. $ 77-35-19(c) (1982). The State recognizes that this Court may assign error in the absence of an objection if manifest and prejudicial error exists. State v. Tillman, 750 P.2d 546, 553 (Utah 1987). However, this Court has also recognized that -invited errorH is procedurally unjustified and viewed with disfavor, particularly where ample opportunity has been affored to avoid such a result. Id. at 560-61. NO, we are unable to so find unanimously

After duly considering the evidence and applying the law as instructed, do you find beyond a reasonable doubt that the defendant, Joseph Mitchell Parsons, intentionally or knowingly caused the death of Richard L. Ernest for pecuniary gain. YES, we so find unanimously. NO, we are unable to so find unanimously

After duly considering the evidence and applying the law as instructed, do you find beyond a reasonable doubt that the defendant, Joseph Mitchell Parsons, being a person on parole, knowingly possessed or had in his custody or under his control a firearm. YES, we so find unanimously. NO, we are unable to so find unanimously

DATED this day of January, 1988.

Jury Foreperson

(R. 297-98). After deliberation, the jury foreperson marked each box in the affirmative and signed and dated the verdict form. Id. As shown above, the special verdicts signified whether the jury found the aggravating circumstances to be in existence. Id. No language in the special verdict questions suggests the substantive persuasiveness of the individual aggravating circumstances. 16. In fact, the preface to the questions instructs the jury to answer the questions prior to the entry of a verdict on the relative weight of the aggravating and

_9A- mitigating circumstances. Ld. Each question further instructs the jury to first consider the evidence and law as instructed. Id. Finally, each question states that the jury must unanimously find the aggravating circumstance exists beyond a reasonable doubt. Id. While defendant asserts the law is generally opposed to special verdicts, defendant ignores this Court's opinion in State v. Lafferty, 749 P.2d 1239, 1260 (Utah 1988), which requires a jury to find by special verdict that the State proved beyond a reasonable doubt the elements of a violent crime of which the defendant has not been convicted. In accordance with Lafferty, the trial court required a special finding whether the jury found that defendant as a parolee possessed a firearm (R. 298). Additionally, the trial court instructed the jury that they may only consider the evidence that defendant possessed a firearm if they find beyond a reasonable doubt the elements of the offense of possession of a firearm by a parolee (R. 273-74; Instruction No. 18). At trial, defendant admitted knowingly possessing a firearm while on parole (T. 1039). This Court in Lafferty expressed the concern that an unconstitutional imposition of one aggravating circumstance may require vacating a sentence of death if the manner in which the verdict was reported did not enable this Court to be certain that the death sentence would have been imposed in the absence of the unconstitutional aggravating circumstance. Lafferty, 749 P.2d at 1260 n. 16. Thus, special verdicts aid an appellate court in determining whether a sentence of death is properly imposed. Cf. United States v. Orozco-Prada, 732 F.2d 1076, 1084 (2nd Cir. 1984); United States v. Bulshas, 791 F.2d 1310, 1317 (7th Cir. 1986) (Although special verdicts are generally disfavored in criminal cases, they are permitted when the information sought is relevant to the sentence to be imposed). Notably, the defendant in the case of State v. Tillman, 750 P.2d 546, 563 (Utah 1987) argued on appeal that it was error at the guilt phase to not use special verdicts requiring unanimity on each individual aggravating circumstance. See also, State v. Bishop, 753 P.2d 439, 479 (Utah 1988). This Court rejected defendant's claim that special verdict forms were required, but found that it was sufficient that the jury unanimously find the defendant guilty of first degree murder beyond a reasonable doubt. Id. at 565. Noting that the defendant did not request the use of special verdict forms, this Court found that the evidence was sufficient to establish any one of several aggravating circumstances. As discussed earlier, the Lafferty opinion, which followed the Tillman opinion, suggested that special verdicts may be required under certain circumstances. Lafferty, 749 P.2d at 1260; See also Johnson v. State, 691 S.W.2d 619, 626 (Tex. Cr. App. 1984) (Approving the use of special issue verdicts to guide jurors in weighing aggravating and mitigating circumstances in capital sentencing proceedings). Therefore, no judicial limitation on the use of special verdict forms in capital cases exists.

Defendant claims that the special verdict forms were misleading to the jury because they suggested that only aggravating circumstances existed. In considering whether a jury instruction was proper, this Court has stated: As we have reiterated innumberable times one instruction should not be considered in isolation in order to predicate a claim of error upon it, but the instructions must be read and understood as a connected whole. Taylor v. Johnson, 18 Utah 2d 16, 20, 414 P.2d 575, 577 (1966) (footnote omitted); see also, State v. Brooks, 638 P.2d 537, 542 (Utah 1981). In the present case, the trial court instructed the jury regarding the aggravating and mitigating circumstances as follows: INSTRUCTION NO. 12 The burden of proof necessary for a verdict of death over life imprisonment is on the State, and after considering the totality of the aggravating and mitigating circumstances, you must be persuaded beyond a reasonable doubt that total aggravation outweighs total mitigation, and you must further be persuaded, beyond a reasonable doubt, that the imposition of the death penalty is justified and appropriate in the circumstances. This requires that you compare the totality of the mitigating against the totality of the aggravating factors, not in terms of the relative numbers of the aggravating and the mitigating factors, but in terms of their respective substantiality and persuasiveness. You must decide how compelling or persuasive the totality of the mitigating factors are when compared against the totality of the aggravating factors. In making any judgment that aggravating factors outweigh or are more compelling than the mitigating factors, you must have no reasonable doubt as to that conclusion, and as to the conclusion that the death penalty is justified and appropriate after considering all of the circumstances. This means that upon consideration of all of the

•27- circumstances relating to this defendant and this crime you must be convinced beyond a reasonable doubt that the death penalty should be imposed. (R. 165; Instruction No. 12) (emphasis added). Instruction No. 13 Bets forth the reasonable doubt standard to be applied by the jury (R. 266; Instruction No. 13; Appendix -A"). The jury was further instructed regarding three specific aggravating and seven specific mitigating circumstances (R. 267-68; Instruction No's 14, 15A, and 16; Appendix WB"). Finally, the jury was instructed to consider the instructions as a whole and that no emphasis on any specific instruction is to be inferred. (R. 279; Instruction No. 23; Appendix HCM). In light of the clear admonitions to the jury regarding the burden of proof, the aggravating and mitigating circumstances to be considered, and the interpretation of the instructions as a whole, it should be concluded that the jury was not misled by the special verdict forms. Thus, no manifest error exists. POINT III THE TRIAL COURT PROPERLY DENIED DEFENDANT'S MOTION FOR A PROPORTIONALITY HEAPING REGARDING THE IMPOSITION OF THE DEATH SENTENCE. Defendant argues that the trial court erred in denying defendant's motion for a proportionality hearing. Prior to trial, defendant filed a motion requesting the trial court to

In support of this claim, counsel for appellant relies in part on his personal experience in 13 years of criminal practice in Southern Utah as evidence that the death sentence in the present case was -wantonly or freakishly- imposed. In the absence of record support, this Court should not consider such factual allegations. See State v. Steggell, 66C P.2d 252, 253 (Utah 1983). determine whether the death penalty was being arbitrarily and capriciously sought against him in violation of his right to equal protection under the federal and State constitutions (R. 94-95). The trial court denied the motion but permitted defendant to reassert the motion in the event the death penalty was actually imposed (R. 127-28). Following the death verdict, the trial court again denied defendant's motion after full briefing by the parties (R. 308-46). As cited by defendant, the United States Supreme Court in Pulley v. Harris, 465 U.S. 37 (1984) held that under the Eighth Amendment of the United States Constitution a State appellate court need not compare the death sentence of a case before it with other similar cases. This Court adopted Pulley in State v. Tillman, 750 P.2d 546 (Utah 1987) and expressly rejected "the contention that a case-by-case (comparative) proportionality review is required under the federal or the Utah Constitution." Id. at 562 (footnote omitted). Therefore, defendant's claim that the trial court erred in denying his motion for a proportionality hearing is without merit. Regarding whether the death penalty could be imposed under the facts of this case, the State submits that the jury found beyond a reasonable doubt that three statutory circumstances existed which would elevate the degree of the offense from second degree murder to first degree murder (T. 297- 98). Accordingly, the present case represents a proper imposition of the death sentence in conformity with the check on arbitrariness as required by Pulley and the Eighth Amendment. See Pulley, 465 U.S. at 51. (Holding unconstitutional the 1977 California capital sentencing scheme requiring one or more -special circumstances** to be found before imposing the death sentence.) POINT IV THE TRIAL COURT DID NOT ERR AND THE DEFENDANT WAS NOT PREJUDICED WHEN THE TRIAL COURT ADVISED THE PROSECUTOR THAT A MISTRIAL MAY RESULT IN DOUBLE JEOPARDY. Defendant claims that the trial court improperly intervened in advising the prosecutor that a State's Motion for Mistrial, if granted, would impose the double jeopardy doctrine (Brief of App. at p. 15-18). He claims that in the absence of the trial court's intervention, he would have received a life sentence. Defendant's argument is legally and factually flawed. First, defendant fails to specify any statutory or constitutional authority in support of his claim of judicial impropriety. In the absence of legal analysis or authority, defendant's claim must fail. State v. Amicone, 689 P.2d 1341, 1344 (Utah 1984). Second, defendant mistakenly presumes that the trial court was correct in stating that double jeopardy would preclude a new sentencing phase arising from a State's successful Motion for Mistrial. In fact, the United States Supreme Court in Bulllnqton v. Missouri, 451 U.S. 430, 437-41 (1981) has stated that although it is well established that the Double Jeopardy Clause forbids retrial of a defendant who has been acquitted of the crime charged, the Court has resisted attempts to extend that principle to sentencing. The Court observed that the Double Jeopardy Clause imposes no absolute prohibition against the imposition of a harsher sentence at retrial after a defendant has succeeded in having his original conviction set aside* Id. at 438. However, the Court concluded that the extraordinary circumstances of a capital sentencing phase require that the Double Jeopardy Clause preclude resentencing where a jury has once determined a life sentence to be appropriate. ,Id. at 442- 46. The Court's rationale is identical to that imposed where a conviction is reversed for insufficient evidence. Icl. Under such circumstances, the State is not entitled to a second opportunity to offer whatever proof it can assemble. Ld. at 146. This Court has ruled that it does not violate Double Jeopardy to conduct a retrial after a defendant has successfully obtained a mistrial based on a State witness's improper comment, in the absence of bad faith conduct by the judge or prosecutor State v. Jones, 645 P.2d 656, 657 (Utah 1982). Bad faith conduct includes intentional misconduct designed to provoke a mistrial. Id. In the instant case, it was defense counsel and a defense witness who allegedly created the grounds for mistrial (R. 1169-71). In response, the prosecutor in good faith, however imprudently, sought a mistrial upon his belief that the State had been unfairly prejudiced in proving its case by an alleged misrepresentation by defense counsel. Icl. Under such circumstances, it would be consistent with the rationale in Jones to permit a new capital sentencing phase. Therefore, no reasonable likelihood exists that a different result would have occurred in the absence of the trial court's mistaken advice. Lastly, defendant's claim of error assumes that the trial court would have granted the State's Motion for Mistrial. Clearly, it was completely within the trial court's discretion to grant or deny a mistrial regardless of the State's request. Thus, defendant's claim of prejudice is based on mere speculation and not a reasonable likelihood. See State v. Steggell, 660 P.2d 252, 253 (Utah 1983). POINT V THE TRIAL COURT DID NOT ERR IN ADMITTING EVIDENCE OF AN UNCHARGED NON-VIOLENT CRIME. Defendant asserts that the trial court improperly extended this Court's ruling in State v. Lafferty, 749 P.2d 1239 (Utah 1988) in admitting evidence of a non-violent crime for which defendant was not charged or previously convicted. While defendant fails to specify the crime or alleged improper evidence in his brief, it must be assumed that defendant complains of the evidence regarding his possession of a firearm as a parolee (R.

Defendant fails to support his claim of error with any legal analysis or support beyond his conclusory statement that the trial court improperly interpreted the Lafferty case. See State v. Amicone, 689 P.2d 1341, 1344 (Utah 1984). In Lafferty, this Court stated that something more than the mere mention of error is required in capital cases: As Tillman implies, the mere mention of a claim of error unaccompanied by any legal argument is not necessarily enough, even in a death case, to require that we engage in a full-blown analysis of the claim. Unless the error is manifest on the record, not only must it be raised, but an argument must be briefed. This Court will not engage in constructing arguments out of whole cloth on behalf of defendants in capital cases. Lafferty, 749 P.2d at 1247 n,5 (citing, Tillman, 750 P.2d at 553). 273; Instruction No, 18). Defendant's claim should be rejected. The admission of evidence of other crimes is governed by Rule 404(b) of the Utah Rules of Evidence which reads as follows: (b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. This Court in State v. Forsyth, 641 P.2d 1172 (Utah 1982) held that evidence of a common plan, scheme, or manner of operation is admitted where it tends to prove some material fact to the crime charged. In addition, this Court has recognized that -Utah's death penalty statute provides for a penalty phase in which evidence of any relevant aggravating or mitigating circumstances may be admitted.- Lafferty, 749 P.2d at 1259 (emphasis added); Utah Code Ann. S 76-3-207(2) (1987). -The only restriction on the admission of such evidence is that it must not be unfairly prejudicial to the accused.- Lafferty at 1259, citing, Gregg v. Georgia, 428 U.S. 153, 204 (1976). To assure fairness, this

Defendant fails to rely on Rules 403 or 404(b) of the Utah Rules of Evidence in support of his argument. Therefore, a complete analysis of their applicability is unnecessary. Court in Lafferty ruled that the following requirements be met before admitting evidence of other crimes: First, in jury cases, the sentencing jury must be instructed (i) as to the elements of the other crime regarding which the evidence was adduced and (ii) that it is not to consider evidence of that crime as an aggravating factor unless it first finds that the prosecution has proven all the elements of the crime beyond a reasonable doubt. Second, to assure that the sentencer's treatment of this aggravating factor can be distinguished on appeal from the treatment of other aggravating circumstances with respect to which no similar preliminary burden of proof rests on the prosecution, the sentencing body must specifically find whether the other crime was proven beyond a reasonable doubt. Lafferty at 1260 (footnote omitted). As noted in Point II of this brief, the trial court instructed the jury regarding the elements of the offense of possession of a firearm by a parolee (R. 273-74, 298; Instruction No. 18; Appendix HDM); Utah Code Ann. S 76-10-503(2)(a) (Supp. 1987). The trial court further required the jury to find the offense beyond a reasonable doubt before it could consider the possession of a firearm by defendant as an aggravating circumstance. By special verdict, the jury acknowledged that it found defendant to have committed the offense beyond a reasonable doubt (R. 297-98; Appendix *EH). Therefore, under the ruling of this Court in Lafferty, the trial court properly admitted the other crime evidence.

Even if the trial court's admission of the evidence was error, such error was harmless. This Court will not reverse a conviction unless the error is something substantial and prejudicial in the sense that there is a reasonable likelihood that in its absence there would have been a different result. State v. Tucker, 709 P.2d 313 (Utah 1985); Utah Code Ann. S 77- 35-30(a) (1982); Utah R. Evid. 103(a). In the present case, defendant admitted possession of the .38 caliber pistol in the glove compartment (R. 1036-37, 1050). He further admitted that he knew possession of a firearm was a violation of his Nevada parole. .Id. In light of defendant's admission, no reasonable likelihood exists that he would have received a life sentence in the absence of the other crime evidence. POINT VI NO RECORD EVIDENCE EXISTS TO SUPPORT DEFENDANT'S CLAIM THAT THE JURY WAS IMPROPERLY INFLUENCED BY THE APPEARANCE OF FORMER JUDGE J. HARLAN BURNS. Defendant asserts that the jury was improperly influenced when the trial court acknowledged on the record the presence of former Judge J. Harlan Burns (Brief of App. at pp. 19-20). He concludes that while he is not aware of any specific prejudice or bias, the circumstances are so extraordinary as to require this Court's review. As noted earlier, this Court has consistently held that factual allegations unsupported by the record cannot be considered by this Court. State v. Steqqell, 660 P.2d 252, 253 e Notably, this Court in State v. Bell, 92 Utah Adv. Rep. 22, 28- 29 (filed S. Ct. 9/30/88) declined to distinguish the harmless error standard to be applied under the Utah Constitution. In the instant case, the State submits that the error was harmless under both the -harmless beyond a reasonable doubt" and the -erosion of confidence- standard. (Utah 1983). Likewise, arguments unsupported by legal analysis or authority should not be considered. State v. Amicone, 689

P.2d 1341# 1344 (Utah 1984). In his brief, defendant asserts facts based upon his personal knowledge which are unsupported by the evidence (Brief of App. at pp. 19-20). These facts include that: (1) the jury foreperson was the elementary school principle of defense counsel and four sons of Judge Burns, including the prosecutor; (2) the jury foreperson had appeared as a witness in another matter before Judge Burns and was complimented by Judge Burns for having presided over a school which all of his sons had attended; and (3) that Judge Burns presence for about one to two hours was seemingly an appearance in an advisory capacity for the prosecution, ^i** Because such facts are not contained in the record, this Court should not consider defendant's claim.

In any event, no prejudice as a result of Judge Burns brief appearance is claimed by defendant or present in the record. Therefore, the "extraordinary circumstances" created by Judge Burns presence did not affect the substantial rights of defendant and should be disregarded. Utah R. Crim. P. 30(a), codified as Utah Code Ann. S 77-35-30(a) (1982). POINT VII THE PROSECUTOR DID NOT IMPROPERLY EXPRESS AN OPINION ON THE EVIDENCE DURING CLOSING ARGUMENT. Defendant complains that the prosecutor improperly expressed his opinion regarding the evidence during closing argument (Brief of App. at p. 21). He claims that the prosecutor's assertion of personal knowledge constituted unsworn testimony and improper influence. Defendant's claim is 9 unsupported in fact or law. This Court has recognized that "'counsel for both sides have considerable latitude in their [closinq] arguments to the jury; they have a right to discuss fully from their stand points the evidence and the inferences and deductions arising therefrom.'- State v. Lafferty# 749 P.2d at 1255, quoting State v. Valdez, 30 Utah 2d 54, 60, 513 P.2d 422, 426 (1973). Additionally, this Court has adopted "the general proposition that a prosecutor engages in misconduct when he or she asserts personal knowledge of the facts in issue. Lafferty at 1255. However, a prosecutor's mere predictions of the future were found unlikely to be considered factual testimony by the jury. Id. at 1256. In the present case, the following dialogue occurred during closing argument: MR. BURNS: -There is no way Richard Ernest was a homosexual or would be inclined to put his hand on Mr. Parsons' leg or anybody else's leg.- Use your common sense and judgment. And let's say just for the sake of argument—let's throw all that out. Let's say he did. I don't think yoj believe that, and I don't think you'll find that, but let's just say — g Defendant again fails to support his claim with any legal analysis or authority as required by State v. Amicone, 689 P.2d 1341, 1344 (Utah 1984). Defendant merely cites the ABA Standards for Criminal Justice and the Utah Rules of Professional Conduct. MR SHUMATE: Your Honor, Iroust object at this point. Counsel is referring to his own opinion and what he thinks happened in the matter. It's improper under Ruled [sicJ 3.4 under the Rules of— THE COURT: I think he was drawing a permissible deduction from the evidence. I don't think he was saying what he believed, I think he was saying what he thinks they would find from the evidence. And I'm going to overrule the objection based on that. I will caution you, Counsel—and I'm sure you're aware-that you're not allowed to give your own opinion on matters. MR. BURNS: Thank you, Your Honor. THE COURT: All right. Thank you. (R. 1219-20). Taken in context, it is clear that the prosecutor was not expressing his personal opinion as to the evidence, but rather was asking the jury to hypothetically believe defendant's theory for arguments sake even though he believed they would not accept defendant's theory. Further, the statement was merely the prosecutor's prediction that the jury would not believe defendant's theory of the crime. Finally, any possible error was cured by the instruction to the jury that they may not "consider as evidence statements of the attorneys or any hint or intimation of the truth or falsity of any fact or evidence made by the attorneys- (R. 254; Instruction No. 2? Appendix "F"). In the absence of evidence to the contrary, this Court "must assume that the jurors were conscientious in performing to their duty, and that they followed the instructions of the court.- State v. Hodges, 30 Utah 2d 367, 517 P.2d 1322, 1324 (1974); State v. White, 577 P.2d 552, 555 (Utah 1978). Therefore, no manifest error occurred. POINT VIII DEFENDANT AFFIRMATIVELY WAIVED ANY PREJUDICE RESULTING FROM THE JUROR/WITNESS CONTACT OR, IN THE ALTERNATIVE, THE STATE OVERCAME THE PRESUMPTION OF PREJUDICE. Defendant claims that manifest error occurred when a juror conversed briefly with a State's witness (Brief of App. at 22). Despite defendant's admission that he affirmatively waived any claim of error resulting from the contact, he concludes that prejudice must have occurred in light of the death verdict. Defendant's claim should be disregarded. As noted earlier, this Court has recognized "that 'invited error' is procedurally unjustified and viewed with disfavor, especially where ample opportunity has been afforded to avoid such a result." State v. Tillman, 750 P.2d 546, 560-61 (Utah 1987) (footnote omitted). In the present case, defendant not only invited the alleged error, he affirmatively assured it. During trial, defendant's mother notified the court that she had observed a juror converse with a State's witness. In chambers, the trial court conducted an examination of the respective juror in the presence of defendant and counsel as follows: THE COURT: Okay. Mr. Poulson, an allegation has been made that you were involved in a conversation this morning with one of the witnesses—one or more of the witnesses who testified today—just before court began. The witness identified particularly was Mr. Slater, the owner of the laundromat in Richfield who testified. Did you engage in a conversation with Mr. Slater this morning? MR. POULSON: I think so, yeah. THE COURT: And what was discussed during that conversation?

MR. POULSON: Well# he just told me he was form [sic) Monroe. I told him my father-in- law lived over there and asked him if he knew him. And that was about all. THE COURT: Okay. How long did the conversation last? MR. POULSON: Just about a minute. And then he left. THE COURT: All right. You've previously been cautioned not to talk to anybody who was involved in the case and urged not to talk to anybody. Was there any particular reason you chose to talk to Mr. Slater? MR. POULSON: No. I just wasn't thinking, I guess. THE COURT: Okay. Do you have any questions, Counsel? MR. SHUMATE: Just to make sure. Was there any conversation regarding either Mr. Slater's testimony or what this case is about? MR. POULSON: No, no. I didn't even know he was a witness. I didn't know anything about him. THE COURT: Mr. Burns, did you hsve anything you wanted to ask? MR. BURNS: No questions, Your Honor. THE COURT: All right. Mr. Poulson, I'd appreciate it if you would not discuss what has happened here with the other jurors. Just don't mention it. And I'm assuming that if you're allowed to remain as a juror in the case, please don't talk to anybody. The people that are circulating about in the courthouse are in

.40- all likelihood involved in the case. So I'll have to ask you—I know you're a friendly person, and you tend to talk to people. I'm the same way. But while this case is in progress, we'll just ask you to kind of curb that and ignore anybody in the hall, okay? Anything beyond a nod is probably going to get us in trouble. MR. POULSON: All right. (R. 819-21). Based upon the examination, the trial court found as follows: THE COURT: All right. Let me just state for the record—and I think the record is—the testimony is of record—there really isn't any dispute as to what Mr. Slater testified to. There's no dispute that the defendant went to his laundromat and had his clothes washed and had the brief discussion with him about where the optometrist was, is there? MR. SHUMATE: No, Your Honor. That is not in issue at all. THE COURT: So even though the Supreme Court has held that more than incidental contact can breed similarity which could prejudice a juror's opinion, in view of the fact that the testimony submitted by this witness was really inconsequential— MR. SHUMATE: Or could have been brought in by proffer, Your Honor— THE COURT: —or could have been brought in by proffer, and there's really no dispute, I really can't see how any harm had been done. (R. 821-22). In response, the State requested that, in an "overabundance of caution,- Mr. Poulson be replaced by an alternate juror (R. 822). After consulting with his client, defense counsel opposed Mr. Poulson's removal and stated that any possible prejudice resulting from the conversation was affirmatively waived (R. 822-23). Based upon defendant's waiver, the State withdrew its request for removal (R. 823). -41- In light of the above facts, it would be unconscionable to allow defendant to seek reversal of his sentence based on alleged error which he affirmatively invited. A defendant should not be permitted to intentionally seed prejudicial error in the record as appellate insurance in the event of an adverse sentencing result. Therefore, this Court should not consider defendant's claim of error. In any event, the trial court properly found that the juror/witness contact was inconsequential (R. 821-22). This Court set forth the standard for reviewing juror/witness contact in State v. Pike, 712 P.2d 277 (Utah 1985). Any improper contact between jurors and witnesses raises a rebuttable presumption of prejudice. Ld. at 280. To rebutt the presumption, the State must establish that the contact was nothing more than a "brief, incidental contact where only remarks of civility were exchanged.- State v. Erickson# 749 P.2d 620, 621 (Utah 1987). A shown above, the contact between Juror Poulson and Witness Slater was a brief encounter involving the mere exchange of residency information (R. 819-21). Juror Poulson did not discuss the case with Mr. Slater nor did Mr. Poulson know that Mr. Slater was to be called as a State's witness. Id. Finally, Mr. Slater was concededly an inconsequential witness who simply established that defendant dropped off and picked up his laundry in Richfield on the day of the crime (R. 779-81, 821-23). In view of the inconsequential nature of the contact and defendant's concession at trial that the contact was harmless, this Court should affirm the trial court's finding that the presumption of prejudice was rebutted by the inconsequential nature of the contact. POINT IX THE TRIAL COURT PROPERLY DENIED DEFENDANT'S REQUEST FOR A REASONABLE ALTERNATIVE HYPOTHESIS INSTRUCTION Defendant claims that the trial court erred in refusing to give a -reasonable alternative hypothesis" instruction (Brief of App. at p. 23). He claims that the jury should have been instructed that if they could view the evidence in two reasonable interpretations, one in favor of aggravation, and the other in favor of mitigation, that they were required to adopt the mitigating circumstances (R. 211-12). Defendant's claim is without merit. This Court has explained that a "reasonable alternative hypothesis" instruction is purely discretionary on the part of the trial judge in cases involving circumstancial evidence. State v. Larocco, 665 P.2d 1272, 1273 (Utah 1983); State v. Eagle, 611 P.2d 1211, 1213 (Utah 1980). Regarding the instruction, Justice Hall stated that "any controversy over its use constitutes nothing more than a tempest in a tea pot." Eagle at 1213. He explained that such an instruction is simply a redundant method of explaining to the jury the elusive "beyond a reasonable doubt" standard. Id. Where the "reasonable doubt" instruction is given, the jury is properly informed of the legal standard to be applied. Id. In the instant case, the burden of proof to be applied to a capital sentencing phase was clearly explained to the jury.

• A?- As discussed in Points II and V of this brief, the jury was instructed that it must find that the aggravating circumstances exist beyond a reasonable doubt and that the aggravating circumstances outweigh the mitigating circumstances beyond a reasonable doubt (R. 267-68, 273-74, 297-98; Instruction No. 14, Appendix "B"; Instruction No. 18, Appendix "DM; Special Verdict Questions, Appendix "E"). Further, the reasonable doubt standard was clearly defined for the jury in a separate instruction (R. 266; Instruction No. 13, Appendix HA"). In view of the clear instructions regarding the legal standard of proof, the trial court properly denied defendant's request for a "reasonable alternative hypothesis'* instruction. CONCLUSION Based upon the foregoing arguments, respondent respectfully requests this Court to affirm defendant's conviction and sentence of death. RESPECTFULLY submitted this ^^f Bay of October, 1988. DAVID L. WILKINSON Attorney General

DAN R. LARSEN Assistant Attorney General

44- CERTIFICATE OF MAILING I hereby certify that four true and accurate copies of the foregoing Brief of Respondent were mailed, postage prepaid, to James L. Shumate, attorney for defendant, P.O. Box 623, Cedar City, Utah 84720, this ^^2-ZT^ay of October, 1988. APPENDICES APPENDIX A INSTRUCTION NO. jZ

Reasonable doubt in the penalty phase means a doubt that is based on reason and one which is reasonable in view of all of the evidence. Proof beyond a reasonable doubt is that degree of proof which satisfies the mind and convinces the understanding of those who are bound to act conscientiously upon it. Reasonable doubt is a doubt which reasonable men and women would entertain, and it must arise from your consideration and weighing of the totality of the aggravating and mitigating circumstances, and from the evidence or lack of evidence in the case.

If, after an impartial consideration and comparison of all the evidence in the case, you can candidly say that you are not persuaded that the death penalty should be imposed, you have a reasonable doubt. But if, after such impartial consideration and comparison of all the evidence, you can truthfully say that you have been persuaded so as to have an abiding conviction that the death penalty is appropriate in this case, such as you would be willing to act upon in the more weighty and important matters relating to your own affairs, you have no reasonable doubt. A reasonable doubt must be real, substantial doubt and not one that is merely possible or imaginary.

;LY>G APPENDIX B INSTRUCTION NO. /f

With respect to aggravating and mitigating circumstances, the law of the State of Utah provides: AGGRAVATING CIRCUMSTANCES The defendant intentionally or knowingly caused the death of Richard L. Ernest under any of the following circumstances: 1. While the said Joseph Mitchell Parsons was engaged in the commission of or an attempt to commit, or flight after committing or attempting to commit aggravated robbery and/or 2. For pecuniary gain and/or 3. The said Joseph Mitchell Parsons had previously been convicted of a felony involving the use or threat of violence to a person. You may consider as aggravating circumstances those circumstances listed above. MITIGATING CIRCUMSTANCES 1. "The defendant has no significant history of prior criminal activity." 2. "The murder was committed while the defendant was under the influence of extreme mental or emotional disturbance." 3. "The defendant acted under extreme duress or under the substantial domination of another person." 4. "At the time of the murder, the capacity of the defendant to appreciate the ciminality (wrongfulness) of his conduct or to conform his conduct to the requirement of the law was substantially impaired as a result of mental disease, Intoxication or influence of drugs." 5. "The youth of the defendant at the time of the crime." 6. "Whether the defendant was an accomplice in the murder committed by another person and his participation was relatively minor. 7. "Any other fact in mitigation of the penalty." The foregoing are direct quotations from the law. In stating them to you the Court does not intend to imply that any of them are applicable to this case. Whether or not they are applicable is for you to determine from all the evidence. INSTRUCTION NO, l£~ A

You may also consider as aggravating circumstances or mitigating circumstances any other evidence admitted at the penalty phase of this trial relating to the nature and circumstances of the crime, the defendants character, background, mental or Qr *\*\ ad *r~ physical condition, and any other facts in aggravation^provitled they relate to the nature and circumstances of the crime or the individual characteristices of the defendant. INSTRUCTION NO. }U

Mitigating circumstances may also include circumstances which do not constitute justification or excuse for the offense

but which may be considered as extenuating or reducing tne moral

culpability or blame.

*~ 11 APPENDIX C INSTRUCTION NO.

If in these instructions any rule, direction or idea be stated in varying ways, no emphasis thereon is intended by me and none should be inferred by you. For that reason, you are not to single out any certain sentence or any individual point or instruction and ignore the others but you are to consider all the instructions as a whole and are to regard each in the light of all the others*

The order in which the instructions are given has no significance as to their relative importance. APPENDIX D INSTRUCTION NO, /S

I have previously instructed you that the State has the burden of proving beyond a reasonable doubt that the totality of the aggravating circumstances outweighs the totality of the mitigating circumstances in this case and that, beyond a reasonable doubt, the imposition of the death penalty is justified and appropriate in the circumstances of this case. You must find that the State has met its burden before you may impose the death penalty in this case. As an aggravating circumstance in addition to those upon which I have previously instructed you, the State has produced evidence that the defendant, Joseph Mitchell Parsons, committed the crime of being a person on parole in possession of a firearm in violation of the law of this State. Before you may consider evidence that the defendant possessed a firearm before, during or after he admittedly caused the death of Richard L. Ernest, you must find beyond a reasonable doubt, that each and every one of the following elements has been proven by the evidence: 1. That the offense, if any, occurred in the State of Utah, 2. That the offense, if any, occurred on or about August 31, 1987, although the exact date is immaterial, 3. That the defendant, Joseph Mitchell Parosn, was on parole for a felony,

£73 4. That the defendant, knowingly had in his possession or under his custody or control, 5. A firearm. You are instructed that the .38 caliber pistol located in the glove compartment of the 1906 Dodge Omni is in fact a firearm. If you find that each and every element stated has been proven by the evidence and beyond a reasonable doubt, then you may consider the possession of the firearm by the defendant as an aggravating circumstance. If you find that one or more of these elements has not been proven beyond a reasonable doubt, then you may not consider the presence of the firearm in the vehicle for any purpose and you are hereby instructed, in that case, to ignore and disregard the evidence presented regarding the firearm. A special verdict question will be given so you can state you findings on this question. APPENDIX E • I' iri J,, . , , . . ... i IRON COUNTY FILET .JAN 2 91988 ftvv/V-'V? <•;<, df. SPECIAL VERDICT QUESTIONS (J

Prior to entering your verdict on one of the following verdict forms, you are instructed to answer each and all of the following Special Verdict Questions: After duly considering the evidence and applying the law as instructed, do you find beyond a reasonable doubt that the defendant, Joseph Mitchell Parsons, intentionally or knowingly caused the death of Richard L. Ernest while the said Joseph Mitchell Parsons was engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit Aggravated Robbery. _ YES, we so find unanimously.

NO, we are unable to so find unanimously.

After duly considering the evidence and applying the law as instructed, do you find beyond a reasonable doubt that the defendant, Joseph Mitchell Parsons, intentionally or knowingly caused the death of Richard L. Ernest for pecuniary gain. YES, we so find unanimously.

NO, we are unable to so find unanimously.

^9? After duly considering the evidence and applying the law as instructed# do you find beyond a reasonable doubt that the defendant, Joseph Mitchell Parsons, being a person on parole, knowingly possessed or had in his custody or under his control a firearra, %*^ YES, we so find unanimously.

NO, we are unable to so find unanimously.

DATED this ? *f day of January, 1988,

^Jury Foreperson

•w5)S APPENDIX F INSTRUCTION NO. 2

You are the exclusive judges of the facts and the effect, value and weight of the evidence produced in this case. You may consider any evidence which is admitted by me. You may not consider evidence which is excluded or which is admitted and later ordered by me to be stricken Likewise, you may not consider as evidence statements of the attorneys or any hint or intimation of the truth or falsity of any fact or evidence made by the attorneys. If the attorneys stipulate to any fact or facts and that stipulation is accepted by me, you may regard the stipulated fact or facts as conclusively proven and shown.